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Sunday, April 17, 2016

Benches and The Law Commission

This is the fifth post of the series 'LegalTrek'.The last post was about my 'Introduction to Setalvad' and this post is about MC Setalvad's view on Lucknow bench as well as his view on benches of the courts.

MC Setalvad was the first Attorney General as well as the first Chairman of the Law Commission of the independent India. It submitted fourteen reports to the Government. The fourth and the two volumes of fourteenth reports were titled as 'The Proposal that high courts should sit in Benches at different places in a state' and 'Reforms of the judicial administration'.

Setalvad was not a supporter of the benches of the courts. The aforesaid reports, were summed up in the eight chapter titled as 'The Law Commission' of his autobiography. On pages 246-247 of his autobiography, he says,

'[T]he Commission was called upon to deal with...certain proposal made by the States Reorganization Commission in regard to the location of Benches of the High Court at different places in the State. At the time the accepted principle that the High Court should be situated at the capital of the State had been departed from in certain States for historical and political considerations. The High Court of Punjab had a Bench at Delhi, the High Court of Rajasthan sat at Jodhpur and Jaipur, the High Court of Allahabad had a bench at Lucknow, the High Court of Travancore-Cochin sat at Trivandrum and Ernakulam and the High Court of Madhya Pradesh sat at Gwalior and Indore. ... The States Reorganization Bill then before the Parliament had provided that the High Court of a new State and divisional courts should sit at such place or places as the Chief Justice may with the approval of the Governor appoint. When the matter went to the Joint Select Committee, it was proposed to transfer the initiative for the formation of a bench at a particular place from the Chief Justice to the President. In other words, the proposed change emphasized the political consideration that would determine the sitting of a Bench at a particular place.

The unanimous view of the Commission which it expressed in its Fourth Report was that the question had to be considered solely from the point of view of the administration of justice and political and sentimental considerations had, as far as possible, to be excluded. The Commission was of the opinion that it was essential that the High Court should function as a whole and only at one place in the State in order to maintain the highest standards of administration of justice and to preserve the character and quality of the work being done by the High Courts. The Commission combated the view that splitting of the High Courts was necessary in order to take justice to the door of the litigants pointing out that the courts of first instance which dealt with the administration of justice were available at the Taluka or Tehsil or District level. It pointed out that the High Courts were the highest courts of the appeal and the presence of the litigants was not really necessary at the hearing of the appeals. It was also pointed out that if the liberty of the citizen had to be safeguarded and the rule of law was to be ensured it was of paramount importance that the High Courts all over India should be strengthened. Splitting up of the High Courts into different Benches would in effect be turning them into glorified district courts.

The Commission drew support for the view it expressed from the answers received by it to the questionnaire issued by it; the large majority of those who had answered the questionnaire including the judges of the Supreme court had expressed a view against the formation of Benches.

An interesting sidelight on this interim report was furnished by the views we elicited during the course of our tour round the country. Certain members of the Bar appeared before us as representatives of the Advocates’ Association at Lucknow. They had been deputed by their Association to put forward the view that the Lucknow Bench of the Allahabad High Court should in no case be abolished. After they had given evidence, some of the representatives who were fairly junior members volunteered to express their views off the record. They stated that though they had as representatives expressed the view in favour of the continuance of the Bench at Lucknow, they fully realized that in the interests of administration of justice, the High Court should not be divided and should as a whole be located at Allahabad. Only a few senior members were keen on the Bench at Lucknow continuing and all the juniors would be happy to have the bench abolished and the High Court as a whole made to function at Allahabad provided houses could be found for the migrating advocates in Allahabad.'

Personally, I am also of the view that a High Court should not have benches and in a State there should be one High Court. It is difficult to manage the benches: they create administrative problems. It also true that often distances are large and it is inconvenient for the litigants to go to the High Court. But this is true for the administration as well. The solution lies in dividing the State rather than having benches of the High Court. This will improve the administration in the State. This solution is not accepted as it is politically inconvenient eg the State of Uttar Pradesh. It is unmanageable it should be divided but it is not done as it will lose political say national politics. There is talk about the National Court of Appeal. It is engaging attention of the Supreme Court. In the next post of the series, we will talk about the same.